State v. Garcia, 3626
| Decision Date | 16 February 1977 |
| Docket Number | No. 3626,3626 |
| Citation | 560 P.2d 1224,114 Ariz. 317 |
| Parties | The STATE of Arizona, Appellee, v. Jose Manuel GARCIA, Appellant. |
| Court | Arizona Supreme Court |
Bruce E. Babbitt, Atty. Gen., by William J. Schafer, III, and Galen H. Wilkes, Asst. Attys. Gen., Phoenix, for appellee.
Ross P. Lee, Maricopa County Public Defender, by Edmund T. Allen, III, Deputy Public Defender, Phoenix, for appellant.
The defendant Jose Manuel Garcia, appeals from a jury verdict and judgment of guilt to the crime of assault with a deadly weapon, A.R.S. § 13--249(B), and a sentence of not less than five years nor more than six years in the Arizona State Prison.
We have jurisdiction pursuant to Rule 47(e)(5), 17A A.R.S., Arizona Supreme Court Rules.
The defendant raises six issues on appeal. We feel, however, that we need consider only three:
1. Was it error to sentence the defendant under A.R.S. § 13--249(B) rather than A.R.S. § 13--249(A)?
2. Did the court properly instruct the jury on the issue of self-defense?
7. Did the court err in denying defendant's motion for change of judge?
At approximately 11:00 on the evening of 3 July 1975, Roy Aguilar, age 16, his brother Oscar, and a friend named Charles Seitz were standing in the front yard of a residence located in the 4000 block of West Topeka, in Maricopa County. The defendant Jose Garcia drove by. With him as passengers were three of his brothers, Manuel, Andy and Danny Garcia, and a companion named Bill Bodine. Oscar Aguilar called out in recognition and Jose Garcia stopped. The two groups began to engage in some bantering. At one point one of Jose Garcia's younger brothers opened the car door and vomited near Roy Aguilar, who was leaning against the vehicle. The testimony indicated that earlier the Garcias and Bodine had been at a drive-in where they consumed a 12-pack of beer. Roy Aguilar remarked 'What's he throwing up on, dope?' Jose Garcia got out of the car and strode up to Roy, saying repeatedly 'Are you looking for a fight?' Roy, who had homemade nunchakus (chinese fighting sticks) slung over his shoulder, laughed in response. At this point the testimony conflicts. Roy Aguilar, Oscar Aguilar and Charles Seitz testified that Jose Garcia punched Roy in the mouth and stabbed him in the abdomen with a switchblade knife, and then Roy hit Jose over the head with the nunchakus, which in fact broke after the blow. Jose Garcia testified that he merely pushed Roy, whereupon Roy struck Jose with the nunchakus and Jose pulled out his switchblade knife and stabbed Roy in self-defense.
After this initial exchange of blows, the Garcias and Bodine piled out of the car and began to fight with Roy, who was flailing away with his broken nunchakus. Oscar Aguilar joined in the fracas. Roy Aguilar broke away and went a few feet into a shallow ditch where he stumbled over an abandoned bicycle. The Garcias and Bodine caught up to him and Jose Garcia stabbed him twice deeply in the chest and slashed him while the others pummeled away. Roy again broke loose and staggered up the driveway, Jose and Manny Garcia in pursuit. He collapsed against a parked car. He later testified that Jose and Manny punched him some more and then one of them declared 'This is what you get for messing with the Garcias.'
Roy Aguilar sustained seven to eight knife wounds. The switchblade knife used in the assault was never recovered. The defendant testified that it had a three inch blade but the surgeon who treated Roy testified that one of the stab wounds was four to five inches in depth.
The defendant argues that he should have been sentenced under A.R.S. § 13--249(A) instead of A.R.S. § 13--249(B). Defendant's argument is two-prong. First, he argues that the information charging him with assault with a deadly weapon gave no notice that he was to be prosecuted under the enhanced punishment provisions of subsection B of A.R.S. § 13--249. Second, that the 'or other deadly weapon' language of subsection B does not encompass a knife. As to the second contention, State v. Williams, 110 Ariz. 104, 515 P.2d 849 (1973) held that a knife is a deadly weapon for the purposes of subsection B of A.R.S. § 13--249 and is dispositive of defendant's argument. As to defendant's first contention, that the court erred in sentencing the defendant under subsection B of A.R.S. § 13--249, we must look to the statute and the information to see if the defendant was put on notice that he would receive the enhanced punishment A.R.S. § 13--249(B) imposes. The statute states:
(emphasis supplied)
The information charging the defendant with assault with a deadly weapon read in part:
'IN THE NAME AND BY THE AUTHORITY OF THE STATE OF ARIZONA, JOSE MANUEL GARCIA is accused this 16th day of July, 1975, by the County Attorney of Maricopa County, State of Arizona, by this Information, of the crime of ASSAULT WITH A DEADLY WEAPONA felony, committed as follows, to-wit:
'The said JOSE MANUEL GARCIA, on or about the 3rd day of July, 1975, and before the filing of this Information at and in the County of Maricopa, State of Arizona, While armed with a gun or deadly weapon, assaulted Roy Aguilar, With a deadly weapon or instrument, to-wit: a knife, all in violation of A.R.S. § 13--249 * * *.' (emphasis added)
The facts of the case can support a conviction under either subsections A or B. The information is confusing in that it merely uses the statute number (§ 13--249) and does not indicate subsection A or B and uses language peculiar to subsections A and B. The phrase 'gun or deadly weapon' naturally draws the reader's (and the defendant's) attention to subsection B. See State v. Adrian, 24 Ariz.App. 344, 538 P.2d 773 (1975). However, the phrase 'deadly weapon or instrument' is peculiar to subsection A and it is not unreasonable that a defendant could believe that he was being charged under subsection A and not subsection B. We have previously stated in a similar situation:
State v. castaneda 111 Ariz. 264, 268, 528 P.2d 608, 612 (1974).
We therefore hold that it was error to sentence defendant under subsection B rather than subsection A.
Defendant raised the issue of self-defense and asked for an instruction based upon a prior Arizona case which reads:
'Although self-defense has been classified as an 'affirmative plea' of the defendant (Judd v. State, 41 Ariz. 176, 193, 16 P.2d 720), that has been held not to mean that the defendant has the burden to prove that plea by a preponderance of evidence, or otherwise. (citations omitted) The State's burden to prove beyond a reasonable doubt that the defendant...
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